Jones v. State, 90

• Decision Date: 11 January 1978
• Docket Number: No. 90,90
• Citation: 381 A.2d 317,38 Md.App. 432
• Parties: Robert Ray JONES v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 432

38 Md.App. 432

381 A.2d 317

Robert Ray JONES v. STATE of Maryland.

No. 90.

Court of Special Appeals of Maryland.

Jan. 11, 1978.

Certiorari Granted March 28, 1978.

Michael R. Malloy, Asst. Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

Alexander L. Cummings, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., William A. Swisher, State's Atty., for Baltimore City, and Steven Sacks, Asst. State's Atty., for Baltimore City, on the brief, for appellee.

Argued before POWERS, ^* MELVIN and MASON, JJ.

MASON, Judge.

Appellant, Robert Ray Jones, was convicted by a jury in the Criminal Court of Baltimore of first degree murder, robbery with a deadly weapon (two counts) and several handgun violations. Appellant's principal assignment of error is that the trial court abused its discretion in denying his motion for severance.

According to the evidence adduced at trial, Danny Miller, ¹ James Johnson and appellant met on December 26, 1975 and discussed committing a "stick-up" to obtain money for drugs. After driving around searching for a suitable place to rob, they proceeded to the Heritage Savings & Loan Association on Deepdene Road in Baltimore City. Johnson and Miller remained in the car behind the building, while appellant proceeded toward the savings & loan. Diana Hevesy, the branch manager, testified that at approximately 4:00 P.M., she and Linda Trueblood, a teller, were in a bullet proof office, when a man entered the building, pulled a gun and demanded she open the door of the office. Disregarding his order, she dropped to the floor and directed Trueblood to activate the alarm, whereupon the would-be robber fled. Subsequently, Trueblood selected appellant's photograph from an array of pictures and positively identified him in a line-up and at trial.

The threesome then decided to rob a pharmacy on 37th Street and Falls Road. They parked the car half a block away, and again appellant left the car and approached the pharmacy. A clerk testified that at approximately 5:30 P.M a man entered the store and, after purchasing a pack of gum, "came up with a gun" and said "you know what this is." The gunman ordered Herman Glassband, the pharmacist, to surrender his wallet and open the register. Later, both the clerk and the pharmacist positively identified appellant in a police line-up and at trial.

After determining that the thirty dollars taken from the pharmacy was not enough to buy drugs, they drove to Ruby's Cut Rate Liquors on Greenmount Avenue and 30th Street. Mildred Sentz, an employee, testified that at approximately 6:30 P.M. a man entered the store to buy cigarettes, and, as she was about to hand them to him from behind a bullet proof window, he pointed a gun and demanded money. She immediately fell to the floor, hid behind a desk and called to the proprietor, Manuel Kolker. Sentz then heard three or four "bip-like" sounds ² followed by a loud noise similar to a firecracker. She saw Mr. Kolker slump to the floor bleeding from the chest and head. Moments later Officer Michael Baptist, an off-duty Baltimore City Police officer, entered the store and saw Mr. Kolker lying in a pool of blood. At trial Officer Baptist positively identified appellant as the man he observed leaving the liquor store just before he entered.

According to Miller, when appellant returned to the car he stated that "he had to shoot the man" because the man tried to shoot him.

Appellant did not take the stand or offer any evidence on his behalf.

which provides:

If it appears that any party will be prejudiced by the joinder for trial of counts, charging documents or defendants, the court may, upon its own motion or the motion of any party, order separate trials of counts, charging documents or defendants, or grant any other relief justice requires.

Under this rule severance is committed to the discretion of the trial judge, and the purpose of the rule is to avoid prejudice before the fact by segmenting trials. See Note, Joint and Single Trials Under Rules 8 and 14 of the Federal Rules of Criminal Procedure, 74 Yale L.J. 553, 556 (1965). In McKnight v. State, 280 Md. 604, 375 A.2d 551 (1977), where there was a similar offense joinder, the Court of Appeals explicitly articulated the standard to guide the trial court in the exercise of its discretion when a motion for severance is made.

The Court held "that a defendant charged with similar but unrelated offenses is entitled to a severance where he establishes that the evidence as to each individual offense would not be mutually admissible at separate trials." Id. at 612, 375 A.2d at 556.

In determining whether the evidence of similar but unrelated offenses would have been mutually admissible in separate trials, the Court applied the "other crimes" rule as explicated in Ross v. State, 276 Md. 664, 669-70, 350 A.2d 680, 684 (1976):

The frequently enunciated general rule in this state, followed uniformly elsewhere, is that in a prosecution for a particular crime, evidence which in any manner shows or tends to show that the accused has committed another crime wholly independent of that for which he is on trial, even though it be a crime of the same type, is irrelevant and inadmissible. . . . This principle is merely an application of the policy rule prohibiting the initial introduction by the prosecution of evidence of bad character. Thus, the state may not present evidence of other criminal acts of the accused unless the evidence is "substantially relevant for some other purpose than to show a probability that he committed the crime on trial because he is a man of criminal character."

There are exceptions to this general exclusionary rule which, perhaps, are equally well-recognized. Thus, evidence of other crimes may be admitted when it tends to establish (1) motive, (2) intent, (3) absence of mistake, (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other, and (5) the identity of the person charged with the commission of a crime on trial. . . . Additional exceptions have also been recognized: When the several offenses are so connected in point of time or circumstances that one cannot be fully shown without proving the other, and to show a passion or propensity for illicit sexual relations with the particular person concerned in the crime on trial. . . . ; and to prove other like crimes by the accused so nearly identical in method as to earmark them as the handiwork of the accused. (Citations omitted). DC See generally, C. McCormick, Evidence, § 190 (2d ed. 1972).

In McKnight v. State, supra, four similar but unrelated robberies were committed during a one month period in the same neighborhood where both McKnight and the victims lived. Three of the four victims were men in their late fifties or sixties; three of the victims identified McKnight; and the modus operandi of the assailant was similar in each robbery. The State argued that McKnight suffered no prejudice from the trial judge's refusal to grant a severance because the four offenses "were so nearly identical in method as to earmark the commission of those robberies as the handiwork of the appellant." Id. at 613, 375 A.2d at 556. The Court found that the evidence offered did not come within the handiwork exception of the general exclusionary rule, and that the evidence offered to prove McKnight's guilt on each of the four robbery charges would not have been admissible against him had he been prosecuted in separate trials. The Court concluded that the denial of his motion for severance constituted an abuse of discretion. See also United States v. Foutz, 540 F.2d 733 (4th Cir. 1976).

Not unlike McKnight, the State argues that the trial court did not abuse its discretion in denying appellant's motion for severance because the evidence produced to prove appellant's guilt on each of the offenses would have been admissible at separate trials for the same offenses to establish appellant's motive and intent or a common scheme under the "other crimes" rule. Specifically the State contends that:

From this evidence the jury could rationally infer that the three men devised a scheme of committing a robbery or robberies to secure enough money to be divided equally between them so that each of them could purchase drugs. It is clear that a rational inference could be drawn that the first two robberies were unsuccessful or only partially successful in that enough money had not been yet obtained for this purpose. Once the liquor store had been robbed, it was then that enough money was available to purchase drugs. Hence, the appellee submits that the various offenses were not unrelated but were admissible to establish a common scheme, motive and intent on the part of the three men including the appellant in furtherance of their preconceived plan to commit store or bank holdups to obtain sufficient money for the purchase of drugs.

Under the facts of this case, the State's reliance on intent and motive as a basis for admitting evidence of other crimes is misplaced. The fact that evidence may fit one of the certified exceptions to the "other crimes" rule does not mean that it is automatically admissible. The problem is one of balancing and not pigeonholing as discussed by Dean McCormick:

(I)f the judges,...